Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Thursday, April 06, 2006

Riva-Gomez v. Gonzales (9th Cir. - April 3, 2006)

Yet another Ninth Circuit case about whether statutory rape automatically gets you deported as a "crime of violence."

I previously discussed whether 21/15 (i.e., a 21 year old having sex with a 15 year old) -- or, under the Oregon statute, 18/15 -- is a "crime of violence" under the sentencing guidelines. To which the Ninth Circuit, notwithstanding a powerful concurrence by Judge Gould, responded "Yes".

Now the Ninth Circuit decides here that because statutory rape is still "rape", it is automatically a "crime of violence" that essentially compels your deportation. Over the dissent of district judge Pollack.

The former view gets two votes, whereas the latter only gets one. As a result, Carlos Riva-Gomez gets deported for being 19 and having sex with a 14 year old.

P.S. - Judge Trott says that because Oregon law categorically states that a person under 18 years old is "incapable of consent" -- alongside those who are physically incapacitated -- it's equally a "crime of violence" to have sex with any 17 year old as it is to have sex with someone passed out. Agree?